Knight First Amendment Institute questioning digital border searches

Digital searches and discrimination are surfacing as citizens and non-citizens are being searched at the U.S. border.

The Knight First Amendment Institute of Columbia College is suing the U.S. Department of Homeland Security over the practice.

The Knight First Amendment Institute suspects that Homeland Security is stopping and searching travelers who have Muslim names on their documents. A red flag was raised when Homeland Security refused to hand over the list of who is stopping at the border.

“If it is the case that people of the Muslim faith or with Muslim sounding names are getting different treatment, that could be a constitutional problem because it could be seen as a way of the government being in favor of those who are not Muslim,” said Okemos attorney and First Amendment expert John Fraser.

The purpose of the lawsuit is to expose the DHS and release the documents of whose electronics are being searched. The Knight First Amendment Institute filed a Freedom of Information request for the names on the search list, but Homeland Security has not complied.

The list was a public record until 2013.

“There was a list of names that the DHS would keep and they would stop people at the border who had those specific names. My brother has the same name as a suspected terrorist that was on that list. When he was a 10-year-old kid he would get stopped at the border,” Sakina Abedi 20-year-old Michigan State University student said. “I remember growing up, every time we were going to Canada to visit family they would stop us and we would have to go and pull over because his name was on the list.”

Along with Muslims, journalists’ electronics are also being searched at the border. Their devices contain work-related information that is being confiscated and investigated.

One photojournalist, Ed Ou, was stopped and searched at the border in late 2016. His cell-phone was confiscated and he was denied entry into the United States. Ou, who is Canadian, describes himself as having a culturally ambiguous identity. Ed has been working as a global journalist since his teen years. He has covered Hezbollah in Lebanon, the fall of the courts in Mogadishu and he has lived in Kazakhstan.

Over the past two years, electronic searches have nearly doubled. In 2016, between October and March, 8,383 searches of electronic devices w
ere conducted. During the same months in 2017, 14,993 searches were recorded.

Devices are being searched before travelers enter the country because of a loophole. A 2014 Supreme Court ruling said that a warrant must be issued before a cellphone can be searched. If only applied to people already in the United States.

Border patrol does have the right to search individuals, however it does not have the right to discriminate against people based on their names, religion or occupation.

“The Fourth Amendment says that you have a constitutional right to be free from illegal searches and seizures and that searches and seizures require probable cause,” Fraser said.

Tablets, laptops and cellphones are being searched. Enforcers have gone as far as asking for usernames and passwords to social media accounts.

“My family knows people who have been asked to give up their social media so it could be looked through,” Abedi said. “Now, every time we cross the border just as a precaution we delete the Facebook app off of our phones just in case we do get stopped and asked. We don’t have social media on our phones, just in case one of us posted a political opinion.”

“When we are talking about the freedom of religion in the First Amendment, we are talking two different components,” Fraser said. “The first is that your free exercise of your religion cannot be restricted and also the government cannot give a preference to one religion over another.”

Muslim Americans are discouraged from crossing the border.

“My brother and I were coming back from my grandparents’ house in Canada and we were stopped at the border for a good three hours,” Abedi said. “We were stopped because they thought we were ISIS. We had to explain why we were there and now my brother doesn’t even bother crossing the border.”

Related Series

This Michigan State journalism project looks at how First Amendment freedoms of religion, speech, press, assembly and petition are exercised and tested during the first 100 days of the Trump administration.

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